Uttarakhand High Court
SA/101/2023 on 22 August, 2023
Office Notes, reports,
orders or proceedings
SL.
Date or directions and COURT'S OR JUDGES'S ORDERS
No
Registrar's order with
Signatures
SA No. 101 of 2023
Hon'ble Vivek Bharti Sharma, J.
Mr. Siddhartha Singh, counsel for the
appellant.
2. Counsel for the appellant/defendant would
submit that the Original Suit No. 345 of 2001
was filed by the daughter-in-law against her
mother-in-law with the averments that on
02.08.2000 a registered agreement to sell was
executed by the appellant/defendant in favour of
the respondent/plaintiff daughter-in-law for total
consideration of ` 80,000/- for sale in which the
earnest money of ` 72,000/- was paid; that,
however, the respondent/plaintiff did not
produce and examine any attesting witness to
this Agreement to Sell and even the scriber of
this Agreement to Sell did not produce himself
for cross-examination.
He would further submit that during the
trial, with sagacious intervention of the
relatives, the parties agreed to cancel the
Agreement to Sell and the same was drafted and
signed and produced before the Sub-Registrar
for registration, however, the
respondent/plaintiff intentionally withdrew
herself from the Sub-Registrar office for
registration of the cancellation of Agreement to
Sell; that, Sub-Registrar, therefore, issued
Notice to the respondent/plaintiff under Section
36 of the Registration Act calling upon her to
appear and explain, however, the
respondent/plaintiff did not respond the said
notice, consequently the Deed of Cancellation
of Agreement to Sell was registered.
3. Counsel for the appellant/defendant would
further submit that the trial court and the First
Appellate Court miserably erred in not
appreciating the fact that except
respondent/plaintiff and her husband, neither
attesting witness was examined nor scriber was
cross-examined, therefore, the agreement to sell
could not be said to have been duly proved,
therefore, erred in relying upon the same and
decreeing the suit.
4. Counsel for the appellant/defendant would
submit that the courts below have erred in not
appreciating the fact that the agreement to sell
was duly cancelled and registered and again
erred in dismissing these facts with the
observations that the cancellation of agreement
to sell is not valid as the respondent/plaintiff
was not present despite service of notice under
Section 36 of Registration Act.
He would further submit that the readiness
and willingness by respondent to pay was not
proved and when the respondent/plaintiff had
prayed for compensation and damages also,
then no decree of specific performance could be
passed, therefore, the judgments of the trial
court and the First Appellate Court are bad in
the eyes of law and not sustainable.
5. In view of the above, the second appeal is
admitted on the following substantial questions
of law:-
a. Whether the trial court erred in decreeing
the suit for specific performance
notwithstanding the fact that readiness
and willingness to pay the consideration
amount was not proved on record?
b. Whether the trial court and the First
Appellate Court erred in not considering
the important fact that the
respondent/plaintiff was inconsistent in
respect of the amount of earnest money
paid and despite inconsistencies wrongly
decreed the suit.
c. Whether suit for specific performance of
agreement to sell could be decreed for
execution of sale deed, when the plaintiff
had sought the relief of compensation and
damages?
d. Whether both the courts below have
concurrently erred in law by discarding
the registered cancellation of Agreement
to Sell dated 11.09.2008 whereby the
agreement to sell dated 02.08.2000 was
cancelled, following the procedure laid
down in Section 34, 35, 36, 60 & 75 of
Indian Registration Act, 1908?
e. Whether the registered cancellation deed
dated 11.09.2008 could be discarded
against the provisions of Section 60 of the
Registration Act when the same has not
been challenged by the plaintiff in any
appropriate forum?
6. Issue notices to the respondent through
ordinary process, registered post
acknowledgment due as well as through e-mail
address and WhatsApp contact, if available.
7. Steps to be taken within a week.
8. List this matter on 10.11.2023.
9. The effect and operation of the
impugned judgment and decree dated
30.07.2013 passed by 1st Additional Civil
Judge (Junior Division), Haridwar as well as
the impugned judgment and decree dated
28.07.2023 passed by 4th Additional District
Judge, Haridwar is stayed.
10. Stay application (IA No. 01 of 2023)
stands disposed of accordingly.
(Vivek Bharti Sharma, J.)
22.08.2023
Akash
